At the opening night of his first solo museum exhibition at the ICA Boston, Shepard Fairey was surrounded by gallery goers, all waiting to hear his answer to the question: “What about copyright?”
Many critics (and the Associated Press) believe Fairey’s work is pure plagiarism and a shameless attempt to deceive his audience by passing off duplications of original work, with out alteration, as his own. Others believe he is subverting the system by redefining and recontextualizing images in an effort to build upon collective cultural knowledge, providing critical critique through satire, parody and personal expression. As the artistic merits of Fairey’s work are volleyed across blogs, articles, and the nightly news, the issue of what cultural content is fair to use in art, the classroom, commerce, and simply in YouTube videos has made its way into the public discourse. And we’re so glad, because we appropriation and remix artists are tired of explaining things.
If you’re new to making or reading media that uses copyrighted material or for those of you who need a reminder about the rights of artists, authors and creators, here are the guidelines established by Congress under U.S. Copyright Law. These are important to keep in mind when deciding whether copyrighted material has been used fairly or if it has been plagiarized. If you use copyrighted material such as songs, images, footage, and/or written material in your own work, you may want to pass it through this list to make sure you are in accordance with Fair Use.
A work that incorporates copyrighted materials has a good chance of being considered “Fair Use”, and thus protected, if it passes through the majority of these guidelines:
• The incorporated copyrighted material has been changed, altered or given a new meaning or message.
• The final work does not compete commercially with the copyrighted work and is not a potential substitute for the copyrighted work.
• The copyrighted work is being used for parody or reflects upon the original meaning of the copyrighted material.
• The creator is commenting on or critiquing the copyrighted material, or using it as an illustration or example.
• The creator is reproducing, reposting, or quoting material in order to pay tribute to an experience, event or cultural phenomenon.
• The creator is quoting copyrighted material for use in a news story or academic assignment.
• The creator is copying, reposting, and recirculating a work or part of a work for purposes of engaging others in a discussion.
However, there are additional questions to consider that will complicate things further.
• Has the copyrighted material been published already?
• Is the creator using copyrighted material that is factual and scholarly in nature, or is it the material a creative expression?
• Will the work will be displayed on the internet and in public or in a confined context, such as a small class?
• What portion of the copyrighted material is being used in the new creation?
• Is the creator familiar with fair use practices?
Whether the final work is used commercially or for nonprofit or educational purposes is deemphasized as most secondary uses of copyrighted material include seeking at least some measure of monetary gain.
If the work passes through these guidelines, it has a good chance of being protected under and in accordance with Fair Use Title 17 U.S.C. Section 107, and should be labeled as such.
Whether Fairey chose to appropriate and then critique certain images specifically because of their historical relevance and context or stole images of historical relevance from their rightful owners brings into question our concept of culture and culture creation. When marketers adopt youth and underground culture to target customers are they stealing this imagery? Or are the marketers repurposing it to build upon collective cultural knowledge? Similarly, when a teenager uses a copyrighted song in their YouTube video, are they stealing it from the copyright holder or paying tribute to the artist?
In the opinion of many, including ICA Boston, Fairey’s work is protected under Fair Use. According to the Associated Press, it’s not. So, can artists build upon, critique, question, and comment on our already existing culture using cultural icons with out big corporations threatening to sue? With the desire to cultivate the creative class, is copyrighting and protecting images an obstacle to future creativity and a culture creation?
Hopefully critics, institutions, and the public will become more familiar with Fair Use and implement it in their own work, or at least stop threatening those who do. For those of us who use copyright material in our own work, it means a possible end to the question “isn’t this illegal?”